Video voyeurism ruling glimpses at new reality of communicating

By Randy O’Donnell, AdvocateDaily.com Associate Editor

A decision by Ontario's top court to uphold a voyeurism conviction of a man who secretly took screenshots of his then-girlfriend in sexually provocative poses during video chats illustrates "a tension in the law that we will start seeing more of," especially as intimate relationships become more intertwined and dependent upon technology and the sharing of media, says Toronto criminal lawyer Jessica Zita.

The Canadian Press (CP) reports the Ontario Court of Appeal found the woman had a reasonable expectation of privacy and ruled that the man had violated the agreement that exists between consenting intimate partners.

"I agree with the appellant's argument regarding whether these images were 'surreptitiously' captured. Here, the complainant shared images with her then-boyfriend through Skype. Clearly, those images were for him only," Zita, an associate with Hicks Adams LLP, tells AdvocateDaily.com.

"But she was a willing participant in the recording of the live streaming of those images. Common sense would say that there is a risk one must assume in participating in such open-ended activity. It cannot be argued that she did not consent to him having those images of her.

"In my opinion, the real issue is the publication and sharing of these images under s.162.1. But that wasn't an issue before the Court of Appeal, as the appellant was acquitted of that offence at trial."

Court documents show the pair were in a long-distance relationship between March 2010 and September 2011 and frequently spoke through video chat because they did not often visit each other.

At times, the woman, who lived in Thunder Bay, Ont., would appear nude in those chats. On some occasions, the man, a Toronto resident, took screenshots of her naked and saved them on his computer, court documents show.

The woman testified during the trial that she consented to appear nude before him on live video but did not know he was capturing still images and preserving them.

The documents say that after the pair broke up, some of those photos were emailed to many people, including some of her professional contacts.

The man was acquitted on charges related to the distribution of the photos because it was not proven beyond a reasonable doubt that he had sent them. He was, however, convicted of voyeurism for taking the photos in the first place.

He then challenged the conviction, arguing his former partner could not have a reasonable expectation of privacy because she knew she was appearing nude before a camera.

The man also alleged the judge was wrong to find he acted surreptitiously because there was no proof he intended to hide his actions, arguing "the complainant never indicated she did not want screenshots taken and the appellant never said he would not take any."

"Traditionally, voyeurism was meant to apply to cases where one surreptitiously records another in an intimate state for a sexual purpose. Typically, this applies to people who don't know one another, and are recorded in their private space unknowingly," says Zita, who was not involved in the case and comments generally. "This Ontario Court of Appeal case is an expansion of that law."

CP reports that the appeal court waited to hear the matter until the Supreme Court of Canada (SCC) handed down a ruling in a landmark voyeurism case that touched on the reasonable expectation of privacy, among other things.

In that case, the nation's top court found a high school teacher committed voyeurism by video recording his female students' chests with a camera disguised as a pen.

The man in the video chat case argued his circumstances were different because his then-girlfriend "admitted him within her circle of privacy by voluntarily exposing herself knowing she was doing so through a camera, a device the very purpose of which is to capture images," according to court documents.

He also claimed that because a screenshot "may be easily taken by depressing a single key," the woman must have agreed to the video chats knowing there was a risk one could be taken, the documents say.

But the appeal court agreed with the trial judge, who found the man had breached a "tacit agreement" by capturing the images.

The conclusion that the woman had a reasonable expectation of privacy under the circumstances is consistent with lawmakers' objectives in creating the voyeurism offence to protect Canadians' privacy and sexual integrity, "particularly from new threats posed by the abuse of evolving technologies," the court said.

Zita says the case raises the question of whether a live-streaming chat is a form of visual recording. An answer may have to come from the top court, she adds.

"This case shows how nuanced the law is when applied to these very specific issues," Zita says. "Given how this is the new reality of communicating and sharing and the gap we see in the law (as indicated by this case), I suspect that we will see more issues of this kind appearing at SCC in the near future."